Desperate Final Stretch For The “Marco Civil Do Brasil”

The original 10 internet governance principles that formed the basis for Brazil’s Marco Civil legislation were presented proudly by the Brazilian delegation to the Internet Governance Forum in Vilnius. That was in 2010. In 2012, civil society organisations warned that an amended Marco Civil could erode freedom of the internet. It took yet another year and former NSA contractor Edward Snowden to bring the original ideas, developed in a forward-looking broad public consultation process, back to the floor of the Brazilian Parliament – and there the fight goes on.

According to reports from Brazil, there is a stalemate at the Parliament in Brasilia over the Marco Civil right now. Since last week, no other votes have been able to be taken due to the fight about the legislation which has been debated and, at times, applauded internationally.

The law must be voted in the House of Representatives. After being postponed last week, it was again postponed yesterday, according to Carolina Rossini, Project Director for the Latin America Resource Center at the Internet Governance and Human Rights program at the New America Foundation’s OTI, due to pressure by “telcos who do not accept the text on Net Neutrality.”

Pressure from industry had already resulted in the draft legislation being shelved at the end of last year.

Rossini provided an English language translation of the text, available here.

The net neutrality rules provided in the current draft text ban discrimination of traffic for “content, origin and destination, services, terminal or application” or any other characteristic, as long as it does not result from “technical requirements necessary for adequate performance of services under regulation” (Article 9). An additional decree would regulate the option of traffic management for technical reasons. Telecommunications providers have been up in arms against such provisions, in Brazil and elsewhere.

Fundamental Digital Rights

The core of the Marco Civil is a translation of fundamental rights to the internet, including freedom of access and expression, freedom of privacy and data protection, as well as net neutrality. Civil society groups worldwide applauded not only the content of the original draft proposal, but also the process by which it was developed.

“It was more than a public consultation, it was a public debate in a portal called e-Democracy in which every sector, every individual who wanted to have his or her opinion expressed, could put in their opinion on the details of the civil rights framework,” Carlos Afonso, executive director of the Institute Nupef and member of Internet Steering Committee in Brazil (CGI.br) said at the recent Internet Governance Forum in Bali. The Steering Committee, portrayed as an example of real multi-stakeholder governance, has prepared the Marco Civil and steered the public consultation.

But what had been developed via the innovative process was derailed in Parliament in November 2012. The resulting text led the Electronic Frontier Foundation to warn that the “new version of Marco Civil threatens freedom of expression.”

Rapporteur Alessandro Molon, a congressman for Brazil’s Workers’ Party, in a March 2013 interview spoke about a “civil society defeat,” especially as Brazil approved two cybercrime bills while postponing the Marco Civil. It was easier to decide what should be seen as a crime than to guarantee the rights of citizens, Molon told Brian Pellot from Index on Censorship at the time.

Back to Start – New Old Marco Civil

But now the post-Snowden amendments have reinstated some of the earlier protections. “The text is much closer to many of the goals that have inspired Marco Civil in the first place,” said Rossini, who did an analysis and English language translation of the text, presented last week by Molon.

“Freedom of expression is stronger throughout the text,” Rossini said. “Privacy is also stronger. We have good text on net neutrality and good text on ISP liability” [referring to internet service providers].

The new paragraphs 19 and 20 establish the levelled limitation of liability. Access providers will not be liable, application providers will “only be liable for civil damages arising out of content generated by third parties if [they] do not take steps, after specific court order, within the framework and technical limits of its services and timely mentioned, to make the content identified as infringing unavailable, except otherwise established by law.“

Exceptions from these limited liability rules as provided in amendments included last winter are out for now. But Rossini warned: “The details will be later set by the copyright law, under reform, and that probably will be voted in 2015.”

A concern of civil society is the retention of communication logs – retention is provided for in Article 10, though access shall be governed by court orders. All in all, civil society favours the draft bill.

Post-Snowden Effects

In addition to the re-installment of old guarantees aspired for by civil society organisations, the post-Snowden Marco Civil also embodies the reaction of Brazil’s government to the NSA mass surveillance. President Dilma Rousseff announced her government would seek to protect citizens and companies in Brazil from the tapping and snooping. Localization of data is the catch-word. So according to the articles 11 and 12, internet providers offering services to Brazilian users, regardless of where they are based, would be obliged to adhere to Brazilian legislation and they have to allow for a verification that they do (Article 11).

This is quite similar to what the European Union is considering with regard to their data protection regulation in the making. But Brazil goes a step further and “through Decree, (the Executive Branch) may force connection providers and Internet applications providers provided for in art. 11, who exercise their activities in an organized, professional and economic way, to install or use structures for storage, management and dissemination of data in the country, considering the size of the providers, its sales in Brazil and breadth of the service offering to the Brazilian public,” according to the draft bill. Enforcement measures include warnings, fines and the suspension of services.

It “makes no sense to include” such policies in the Marco Civil, Afonso wrote in a recent article. Unless the government decided to intervene directly in the services offered at the network (and most major services open to the public were free and made by private companies), the only way to stimulate the construction and operation of data centres in the country is to make this activity internationally competitive.

Afonso was similarly sceptical about email “made in Brazil” and the call for more independent infrastructure. With regard to the latter, some things are already in place – and it does not happen overnight.

Whither Marco Civil?

“We have been working on gathering maximum support amongst parties in order to preserve key elements of Marco Civil, such as net neutrality,” Molon wrote tonight in response to questions from Intellectual Property Watch. During this week he had numerous meetings with party leaders and fellow deputies, Molon said, in an effort to explain points of the bill. Numerous parties had already shown their support to net neutrality and realized it is essential to maintain the free and democratic spirit of the internet.

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